Adverse possession: Can you squat to own?

Use adverse possession to get the house back after foreclosure? Fat chance.

Describing himself as a "savvy investor," a man used an arcane property-law doctrine known as adverse possession to squat in a vacant Dallas-area home.

Kenneth Robinson's gambit cost him $16 in filing fees paid to the county clerk's office, and he got eight rent-free months in a home valued at $340,000. The ploy gave him a hook to peddle an e-book explaining how other people could use adverse possession to squat in vacant homes and eventually claim legal title to those properties.

But lawyers familiar with the doctrine of adverse possession say Robinson got the law all wrong. In February, the mortgage holder foreclosed. Robinson moved out rather than face eviction. Even though Robinson failed, it brings up the question of whether it's possible to succeed in taking a house via adverse possession.

What is adverse possession?

Sometimes referred to colloquially as "squatter's rights," adverse possession is an old legal doctrine designed to resolve property disputes and encourage efficient land use.

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Courts use adverse possession to resolve property disputes that could date back decades, says Brian C. Rider, adjunct professor of law at the University of Texas Law School in Austin. Disputes often involve as little as a foot or two of land. Rather than getting bogged down on where a property line was decades ago, courts use adverse possession to set boundaries in accordance with how residents use them today.

What adverse possession does not do, says Rider, is establish so-called squatter's rights.

"The idea, which seems to be in vogue among people who want to become squatters, is that they get some rights immediately," Rider says. "That is not so. A squatter is a trespasser until he or she has been there long enough to get the benefits of the adverse possession statutes."

Legally speaking

Adverse possession statutes exist in almost every state, and while the particulars vary, the general idea remains the same, says Charles R. Gallagher III, a real estate lawyer in St. Petersburg, Fla.

"Generally speaking, adverse possession requires possession that is actual, open, notorious, exclusive, hostile, under cover of claim or right, and continuous and uninterrupted for the statutory period," Gallagher says.

In some states, the statutory period can be as long as 20 years, while in others it may be as few as seven years. But satisfying the numerous possession elements can often be a tricky thing because it's not just enough to be present on the property.

"The difficult elements for a squatter would be exclusive use through some lawful claim or right," says Gallagher.

A squatter would achieve adverse possession only if he or she had a legal basis for being there and if the squatter's presence had the hallmarks of ownership. Courts usually expect those asserting claims of adverse possession to pay property taxes, maintain the land and generally treat it the way an owner would.

Can adverse possession save a home from foreclosure?

In today's housing crisis, Robinson's story is no doubt attractive to homeowners facing foreclosure. But it's far from a sound strategy to save the family home, says Lionel Bashore, an attorney in Shelby Township, Mich.

"I don't believe it will (put off foreclosure), if for no other reason than the length of time someone has to possess a home visibly, openly and notoriously," says Bashore, who adds that in Michigan that period is 15 years. "There may be that one very rare exception where a bank-owned property fell through the cracks and someone somehow establishes the elements of adverse possession."

In this context, "notoriously" means that the squatter's use of the property is so visible that the rightful owner should be on notice that someone is living on the property and claiming ownership.

"I doubt that homeowners can meet the legal criteria to own their home outright under these legal standards," Gallagher says, adding that the owner still would owe the mortgage.

When would a homeowner encounter adverse possession?

Homeowners seldom encounter property disputes involving adverse possession. If they do, it's usually a dispute over something such as a fence or a driveway. The doctrine tends to be more useful in rural areas where demarcation lines aren't visible.

"However, to squat in someone's home and satisfy the elements I think is more like an urban legend -- you hear a lot about it, but no one has actually met anybody that has done it," Bashore says.

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